Neutrality policy also for back office workers?
Some companies or organizations wish to show a neutral image in relation to third parties (customers, suppliers, etc.) and therefore choose to impose an obligation of neutrality on their front office workers, i.e. those who have contact with these third parties. In this context, one forbids to wear religious symbols, such as a headscarf or a cross sign, visibly at work. It has already been confirmed a number of times in case law that this is allowed.
The question arises whether this neutrality policy can also apply to back office workers, i.e. those who have no contact with third parties (e.g. production workers).
Indeed, some employers do not want to distinguish between their staff and therefore opt for a general neutrality policy, e.g. to promote cooperation between employees, especially when there is a lot of diversity, or to avoid discussions.
Front office workers: neutrality policy allowed
In the Achbita case, the Court of Justice clearly ruled that a policy prohibiting the wearing of religious symbols does not constitute an (in)direct religious discrimination against front office workers (in this case a receptionist) (EUR-Lex - 62015CJ0157 - EN - EUR-Lex (europa.eu)).
The Court of Justice (case WABE and MH Müller Handels) has confirmed this view (e.g. for an orthopedagogic caregiver and a cashier). In particular, this case law emphasized that the neutrality policy must meet a genuine need on the part of the company (EUR-Lex - 62018CJ0804 - EN - EUR-Lex (europa.eu)).
In its judgment of 12 October 2020, the Labour Court of Ghent, which ultimately had to rule in the Achbita case, suggested that there is also a lot to be said for a neutrality policy that applies to all employees (including back office workers). However, as the case concerned a front office worker, who had frequent contact with customers, this question, which went beyond the scope of the dispute, was not addressed.
Quid back office workers?
In a judgment of 3 May 2021, the President of the Brussels Labour Tribunal ruled that a neutrality policy applicable to all employees was disproportionate and therefore constituted direct discrimination based on religion. The case concerned a Muslim woman who had twice applied for various HR positions with a Brussels transport company and who, when applying, had indicated that she wished to wear her headscarf at work. The applicant was not hired even though no written internal neutrality policy was presented to her during the application process.
In a judgment of 20 December 2021, the Labour Court of Liège addressed the question whether a neutrality policy, which applied to all staff, including back office workers, in the health sector was legally justified. In an earlier judgment, the same court had ruled that this policy was permissible for front office workers in the health sector, who have contact with the public, e.g. a pharmacist.
The Labour Court decided that the neutrality policy for the entire staff did constitute an indirect distinction between employees on the basis of their religious beliefs, but that this distinction was justified.
The neutrality policy has a legitimate aim. By applying the policy to all employees, and therefore creating a neutral working environment for all, regardless of their political, philosophical or religious beliefs, it was possible to maintain social cohesion among the staff. Indeed, a uniform policy applied to all employees ensures equality and fair treatment of staff in the workplace (especially in the health sector). Because of this neutral environment, no employee feels rejected because of their (lack of) religious beliefs.
Referring to the WABE judgment of the Court of Justice, the Labour Court confirmed that, in the specific case, there was a genuine need on the part of the company to maintain social peace and guarantee equal / fair treatment among employees. If there is no neutrality in the workplace, there is a risk that social peace will be disturbed by the right of other employees to hold different beliefs and, even more so, in view of the freedom of expression, to openly criticize other (religious) opinions. Moreover, the freedom to do business also presupposes that a company can consciously opt for a neutral philosophy to the benefit of employees who have no faith at all.
Please note that not all case law follows this opinion. In the above-mentioned judgment of 3 May 2021, the President ruled that social peace and equal treatment of employees were not sufficient motives to justify a uniform neutrality policy. A risk of social unrest must be substantiated by concrete evidence (of social unrest caused by visible religious signs) or studies. Moreover, disregarding (religious) differences between employees can also be considered a violation of the principle of equality, since unequal situations may not be treated in an identical manner.
In its assessment of the neutrality policy, the Labour Court of Liège therefore considered it important that thorough social consultation had taken place with the employee representative bodies on alternative (and less intrusive) measures to maintain neutrality in the workplace. As an alternative measure, Unia had proposed a headscarf in the colours and with the logo of the company. However, after consultation it was concluded that a neutrality policy, applicable to all employees, was necessary within the company and that the alternative measure was not sufficient.
Finally, the Labour Court found that the neutrality policy was an appropriate measure that was necessary and proportionate. Merely limiting the neutrality policy to front office workers could not, according to the court, guarantee that the legitimate objective of the neutrality policy would be achieved.
Certain case law provides arguments for employers to apply a neutrality policy for all workers (front and back office).
Nevertheless, we recommend not doing so lightly, but taking into account the following points:
- Sectoral: in some sectors, such as the health sector, which has to be very accessible to all patients and where neutrality is therefore advisable, it seems to us more justified to maintain a uniform neutrality policy (for all staff) than, for example, in other sectors (construction/hotel/transport...);
- Consult with your consultative bodies;
- Investigate alternative measures, less intrusive than a neutrality policy, and document why these measures would not suffice in your company (e.g. in the reports of the meetings of the employee representative bodies);
- Define that the policy is necessary for the cooperation between employees (to strengthen a sense of solidarity, equality and justice, social peace, etc.). Include this in the policy (e.g. in an internal memo) with an explicit statement that the employee represertative bodies support this and communicate this to the employees.
How to implement a neutrality policy can be read in our e-zine “Neutrality or diversity policy: to do’s for employers” of 3 June 2021.